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Author: 


Scott,  John 


Title: 


Remarks  of  Mr.  John 

Scott... 

Place: 

Philadelphia 

Date: 

1885 


^U-^3il^0-L^ 


MASTER   NEGATIVE   « 


COLUMBIA  UNIVERSITY  LIBRARIES 
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Business 

|D550.7 

Sc84 

Scott,  John 

Remarks  of  Mr.  John  Scott,  general  solicitor 
Pennsylvania  railroad  company,  before  the  Judi- 
ciary (general)  committee  of  the  Senate  of  Pem>" 
sylvanla  on  the  anti-discrimination  bill.     Har- 
risburg,  April  9th,  1885.     Philadelphia,  Allen, 
Lane  &  Scott's  print,  house,  1885. 
25  p. 


1.  Railroads   -  Pennsylvania.     2,  Railroads  - 
Pennsylvania  -  Rateai^*^ 


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REMARKS 


OF 


MR.  JOHN  SCOTT 


GENERAL  SOLICITOR  PENNSYLVANIA  RAILROAD  COMPANY, 


BEFORE  THE 


JUDICIARY  (GENERAL)  COMMITTEE 


OF  THE 


SENATE  OF  PENNSYLVANIA 


ON    THE 


ANTI  DISCRIMINATION  BILL. 

-^  1,11,       .  '^  ■  '"N  . 


HARRISBURG,  APRIL  9th,  1885. 


PHILADELPHIA: 

Allen,  Lane  &  Scott's  Printing  Hottsk, 

Noe.  229-231  South  Fifth  Street. 

1885. 


.''«*^-'^A^   .j;.'-       !y  ■  -   l:'     /■'i'>^ 


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EEMARKS 


OF 


MR.  JOHN  SCOTT 


GENERAL 


SOLICITOR  PENNSYLVANIA  RAILROAD  COMPANY, 


BEFORE  THE 


JUDICIARY  (GENERAL)  COMMITTEE 


OF  THE 


SENATE  OF  PENNSYLVANIA 


ON    THE 


ANTI-DISCRIMINATION  BILL. 


.^ 


HARRISBURG,  APRIL  9th,  1885. 


4 


PHILADELPHIA: 

Allen,  Lane  &  Scott's  Printing  House, 

Nos.  229-231  South  Fifth  Street. 

1885. 


■■Mar- 


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CI 


REMARKS  OF  JOHN  SCOTT,  ESQ., 

Before  the  Committee  on  Judiciary  of  the  Senate  of 

Pennsylvania. 


Harrisburg,  April  9th,  1885. 

Mr.  Chairman  and  Gentlemen  of  the  Committee  : — I  am 
not  fully  apprised  of  the  course  of  the  argument  that  has 
been  followed  in  the  discussion  of  the  bill  before  you.  I  may, 
therefore,  probably  be  traversing  ground  which  has  already 
been  fully  occupied  by  those  who  have  preceded  me.  I 
shall  waste  none  of  your  time  in  preliminary  observations 
about  the  bill,  but  take  it  just  as  it  is  printed,  and  en- 
deavor, in  as  brief  a  time  as  possible,  to  consider  its  ef- 
fect, if  it  be  passed,  in  the  light  of  the  legal  questions  which 
it  will  raise. 

I  do  not  propose  to  discuss  the  practical  railroad  questions 
involved,  to  any  great  extent. 

I  always  prefer  that  questions  of  that  character  should  be 
handled  by  those  whose  practical  business  operations  enable 
them  to  discuss  them  more  intelligently  and  to  answer  such 
inquiries  as  may  be  presented  with  reference  to  them. 

The  title  of  this  bill  is  "  An  act  to  carry  into  effect  the  pro- 
visions of  the  first,  third,  and  seventh  sections  of  the  seven- 
teenth article  of  the  Constitution  of  this  Commonwealth,  and 
to  provide  penalties  for  the  violation  thereof" 

The  title,  announces  the  intention  to  prevent,  and  punish 
by  penalty,  the  violation  of  any  of  the  provisions  of  either 
of  these  three  sections ;  and,  in  view  of  the  sixth  section, 
which  makes  it  a  misdemeanor  punishable  by  fine  and 
imprisonment  to  do  anything  prohibited,  to  fail  to  do  any- 


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thing  required,  to  violate  either  one  of  these  provisions,  or  to 
aid  or  abet  in  doing  so,  it  becomes  important  to  look 
for  a  moment  at  those  sections  of  the  Constitution  and  ascer- 
tain what  would  be  indictable  offenses  under  them  if  you  thus 
put  them  into  the  form  of  statute  law.     That  I  proceed  briefly 

to  do. 

The  first  section  of  this  bill  is  identical  with  the  first  section 
of  the  seventeenth  article  of  the  Constitution.  It  declares 
three  rules  or  principles :  First,  That  all  railroads  and  canals 
shall  be  public  highways,  and  the  companies  common  carriers. 
Second,  It  announces  the  right  of  the  citizens  to  construct 
and  operate  railroads  between  given  points.  Third,  It  an- 
nounces that  railroads  so  constructed  shall  have  the  right  to 
intersect,  connect  with,  or  cross  any  other  railroad  in  the 
Commonwealth.  Now,  these  are  simple  enunciations  of  rules 
or  principles.  There  is  no  enumeration  of  the  circum- 
stances under  which  the  rule  is  to  be  applied.  Fourth,  It 
declares  a  duty.  In  connection  with  the  declaration  that  every 
railroad  company  shall  have  the  right  with  its  road  to  in- 
tersect, connect  with,  or  cross  any  other  railroad,  it  an- 
nounces the  duty  that  every  railroad  so  constructed  or  so 
intersecting  or  crossing  shall  receive  and  transport  each 
the  other's  passengers,  tonnage,  and  cars,  loaded  or  empty, 
without  delay  or  discrimination. 

I  wish  to  emphasize  again  that  this  Constitutional  pro- 
vision, which  you  are  enacting  into  statute  law,  declares 
three  general  principles,  and  imposes  one  duty  resulting  from 
them.  I  will  go  over  all  three  sections,  before  I  consider  the 
effect  of  enacting  them  into  statute  law,  in  connection  with 
the  sixth  section. 

What  is  the  second  section  of  the  bill  ?  — the  third  of  the  sev- 
enteenth article  of  the  Constitution  ? 

**  All  individuals,  associations,  and  corporations,  shall  have  an  equal 
right  to  have  persons  and  property  transported  over  railroads  and  canals, 
and  no  undue  or  unreasonable  discrimination  shall  be  made  in  charges 
for,  or  in  facilities  for  transportation  of  freight  or  passengers  within  this 
State,  or  coming  from  or  going  to  any  other  State." 

That  is  one  full  sentence — the  first  clause  of  which  declares 


5 

a  right,  and  the  second  clause  of  which  perhaps  defines  a 
duty.  But  before  we  pass  from  it  let  me  call  your  attention  to 
what  I  think  is  very  significant  in  connection  with  the  sixth 
section — if  the  intent  of  this  bill  is  to  protect  all  persons 
within  the  purview  of  those  who  framed  the  Constitution. 

' '  No  undue  or  unreasonable  discrimination  shall  be  made  in  charges 
for,  or  in  facilities  for  transportation  of  freight  or  passengers.'' 

The  sixth  section  starts  out — the  one  in  which  the  criminal 
offenses  are  punished — with  making  a  failure  to  do  anything 
•enjoined  by  those  three  sections  or  the  doing  of  anything  pro- 
hibited an  indictable  offense. 

If  it  be  the  interest  of  the  people  of  this  whole  Commonwealth 
that  the  framers  of  this  bill  are  endeavoring  to  protect,  why 
do  you  omit  in  this  sixth  section  the  schedule  of  passenger 
rates,  and  fail  to  punish  discrimination  in  favor  of  passengers 
as  well  as  that  made  in  carrying  freight  ?  Is  not  the  one  as 
great  an  injustice  as  the  other?  ;^24,ooo,ooo  earned  in  one 
year  by  the  Pennsylvania  Railroad  Company  in  carrying 
freight  and  ^6,ocx),ooo  earned  in  the  same  year  in  carrying 
passengers  would  justify  the  idea  that  the  people  who  pay 
into  the  treasury  one-fifth  of  its  revenues  for  being  carried  on 
the  road  should  be  protected  equally  with  those  who  send 
their  traffic  over  it. 

And  if  it  be  your  policy  to  administer  railroads  or  canals 
■or  any  other  transportation  business  through  the  Courts  of 
<3uarter  Sessions  and  you  intend  to  send  the  officers  of  rail- 
road companies  to  prison  and  amerce  them  with  a  fine  for 
failing  to  perform  any  duty,  or  for  doing  that  which  is  pro- 
hibited by  this  section,  I  claim  that  under  it  discrimination  in 
■carrying  passengers  is  as  bad  as  in  carrying  freight,  and  if  the 
officer  is  to  go  to  jail  for  making  it,  you  should  send  to  jail 
with  him  the  man  who  knowingly  takes  the  benefit  of  the 
discrimination. 

I  mean  what  I  say  when  I  announce  that.  If  it  be  wrong 
for  an  agent  or  officer  of  the  Pennsylvania  Railroad  Company 
to  issue  a  free  pass  to  a  man  who  demands  it,  and  charge 
his  neighbor  full  fare,  the  man  who  receives  it  willfully  and 


knowingly  and  rides  upon  it  deserves  to  go  to  jail  just  as 
much  the  officer  who  issues  it.  (Laughter.)  I  am  speaking^ 
upon  general  principles.     I  disclaim  all  personal  reference  to 

anybody. 

Senator  Lee  : — There  is  another  bill  pending,  Mr.  Scott,. 

to  prevent  the  issuing  of  free  passes. 

Mr.  Scott  : — I  am  very  glad  of  it,  sir.  Has  that  bill  a 
clause  in  it  which  makes  it  an  indictable  offense  in  both 
giver  and  receiver,  and  sends  both  to  jail  ? 

Senator  Lee  :— No,  it  has  not.     (Great  laughter.) 

Mr.  Scott: — I  thought  not.  Here  you  are  incorporating 
into  the  statute  law  the  second  section  of  the  seventeenth  article, 
which  prohibits  discrimination  in  either  freight  or  passengers. 
You  omit  all  reference  in  your  criminal  section  to  discrimina- 
tion about  passengers.  Yet  you  send  a  man  who  sends  out 
a  way-bill  at  a  country  station  to  jail,  if  he  happens  to  make  a 
mistake  in  the  schedule,  or  if  he  happens  to  make  a  mistake 
in  the  class,  and  the  jury  comes  to  the  conclusion  that  he  did 
it  willfully. 

Senator  Lee  : — We  had  a  bill  of  that  character  two  years 
ago  with  a  clause  making  it  a  crime  in  the  receiver,  and  it 
could  not  pass. 

Mr.  Scott  : — I  am  putting  a  question  ;  it  is  not  in  this  bill ; 
that  is  my  point.  I  am  discussing  this  bill  before  the  Senate 
Committee,  and  I  wish  to  discuss  it  with  all  candor  and  fair- 
ness. The  second  section  also  prohibits  this  discrimination 
in  freight : — 

"  Or  passengers  within  this  State  or  coming  from  or  going  to  any  other 
State." 

I  shall  withhold  what  I  have  to  say  about  that  particular 
feature  of  the  bill  as  affecting  inter-state  commerce  until  I 
come  to  the  sixth  section.     Again,  the  second  section  says : — 

**  Persons  and  property  transported  over  any  railroad  shall  be  delivered 
at  any  station  at  charges  not  exceeding  the  charges  for  transportation  of 
persons  and  property  of  the  same  class  in  the  same  direction  to  any  more 
distant  station,  but  excursion  and  commutation  tickets  may  be  issued  at 
certain  rates." 

I    shall  not  take  time   to   comment   on   that.     This   sec- 


*    \    • 


I 


tion  declares  equality  of  right  in  having  persons  and  prop- 
erty transported  over  railroads  and  canals,  and  prohibits 
undue  and  unreasonable  discrimination ;  and  then,  as  one  in- 
stance of  undue  and  unreasonable  discrimination,  defines 
a  case,  namely,  it  prohibits  persons  and  property  going  over 
any  railroad  from  being  delivered  at  any  station  at  charges 
exceeding  the  charges  of  persons  and  property  of  the  same 
class  to  any  more  distant  station. 

The  third  section  (which  is  the  seventh  of  the  Constitu- 
tion) provides  against  discrimination  in  charges  or  facilities 
in  furnishing  cars.  I  have  gone  over  these  three  sections,  as 
they  are  really  the  vital  portions  of  the  bill,  in  view  of  the 
subsequent  enactment. 

What  is  the  effect  of  the  whole  three  ?  With  the  excep- 
tion of  those  parts  of  the  several  sections  which  relate  to  dis- 
crimination in  freight  and  passengers  or  furnishing  facilities, 
all  the  others  are  mere  declarations  of  right  or  principles, 
every  one  of  which  would  require  specific  legislation  to  pro- 
vide for  their  ascertainment  and  enforcement. 

In  addressing  a  committee  of  lawyers,  it  is  not  neces- 
sary for  me  to  say  that  in  order  to  indict  and  convict,  a  crime 
must  be  defined  and  made  certain.  Suppose  you  were  to 
enact  the  principle  of  the  Declaration  of  Independence,  that 
all  men  are  created  free  and  equal,  and  then  follow  it  with 
the  declaration  that  all  men  doing  anything  prohibited  or 
failing  to  do  anything  required,  should  be  indicted — what 
lawyer  would  not  scout  that  indictment  out  of  court. 

Now  let  me  inquire  into  the  effect  of  this  sixth  section 
which  declares  indictable  offenses,  by  taking  one  illustra- 
tion. 

Mr.  Roberts,  the  president  of  the  road,  has  referred  to 
the  question  of  crossings  in  the  Commonwealth.  There  is  the 
abstract  declaration,  without  definition  of  circumstances,  in 
the  first  section  of  this  bill  that  "  every  railroad  company 
shall  have  the  right  with  its  road  to  intersect,  connect  with,  or 
cross  any  other  railroad."  In  the  first  place,  although  that  is 
an  extract  from  the  Constitution,  it  is  entirely  too  broad  when 
_you  come  to  enact  it  into  statute  law  without  further  definition. 


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"  The  railroads  of  any  companies  may  cross  any  other  rail- 
roads."     Why,  there  are  many  railroads  in  this  Commonwealth 
that  are  owned  by  private  individuals.     I  know  railroads  in 
the    interior   of   the   State,   entirely   on   the    lands    of   the 
people   who    built    them,   without    any   franchise   from  the 
Commonwealth.     They  are  not  collecting  tolls,  they  are  not 
carrying   passengers,  they  are  simply  exercising  the  rights^ 
of  private  citizens,  and  are  running  railroads  to  develop  their 
mines.     By  that  language  any  railroad  company  which  hap- 
pens to  come  along  and  strike  one  of  them,  under  this  bill 
has  a  right  to  cross  it.     I  say  they  cannot  do  it  without  first 
condemning  the  property  and  paying  compensation.     But,  for 
the  purposes  of  this  bill  suppose  the  man  who  owns  his  right 
of  way,  has  his  railroad  on  it,  meets  the  engineer  or  president 
of  the  road  seeking  to  cross,  and  says :     "  No,  you  shall  not 
cross ;   I  will  prevent  you  from  crossing  ;  you  have  not  con- 
demned it;  you  have  not  got  the  right  of  way."     And  even  if 
they  had,  is  that  man,  for  exercising  his  right — putting  down 
a  railroad  which  is  not  subject  to  the  police  power   of  the 
Commonwealth,  and  is  as  much  his  private  property  as  if  it 
were  a  tramway  to  his  spring-house — is  that  man  to  be  put  to 
jail  for  preventing  the  crossing  because  he  has  violated  one  of 
the  provisions  of  the  Constitution   of  Pennsylvania?     Why,, 
you   would  have  a  rebellion  around  you   every  day  in   the 
week  if  you  attempted  to  enforce  that  in  a   farming   com- 
munity. 

Senator  Smith  : — Yes ;  we  would. 

Mr.  Scott  : — Yes,  you  would,  Senator.  Now,  let  me  go- 
farther.  There  were  some  railroads  incorporated  before  1857. 
Railroad  corporations,  in  those  days,  when  they  took  their 
charters,  subscribed  their  stock  and  built  their  roads,  relying" 
upon  the  faith  of  the  Commonwealth  in  the  contracts  that 
were  thus  made.  So  long  as  the  principle  of  the  Dartmouth 
College  case  stands,  I  trust  those  contracts  at  least  will 
be  observed.  Now,  it  might  naturally  be  supposed  that  in  a 
great  enterprise,  like  the  Pennsylvania  Railroad  Company,  ta 
run  through  the  interior  of  the  State,  they  would  need  some 
guarantees  on  the  part  of  the  Statethattheir  investment  would 


not  be  frittered  away  immediately ;  and,  accordingly,  on  that 
question  of  crossing  I  invite  your  attention  to  the  last  clause 
of  the  Pennsylvania  Railroad  Company's  charter.  There 
were  good  men  in  the  legislatures  of  those  days.  There  are 
always  good  men  in  the  legislatures  ;  and  they  are  very  greatly 
slandered,  I  know.  But,  those  good  men  seem  to  have  been 
impressed  with  the  idea  that  they  were  making  a  contract  with 
the  Pennsylvania  Railroad  Company,  and  lest  it  might  be  sup- 
posed that  they  had,  by  granting  this  charter  to  build  from 
Harrisburg  to  Pittsburgh,  prevented  themselves  from  charter- 
ing other  railroad  companies  to  occupy  the  same  ground, 
what  did  they  put  into  that  twenty-seventh  section  of  the 
charter  of  the  Pennsylvania  Railroad  Company  ? 

"  The  Legislature  of  Pennsylvania  hereby  reserves  to  itself  the  right 
to  authorize  any  road  hereafter  "  (I  am  not  quoting  exactly  the  sentence, 
but  it  is  the  substance)  ''  to  be  constructed  by  any  other  company— ex- 
cept parallel  roads  to  be  connected  with  the  road  of  the  Pennsylvania 
Railroad  Company  at  such  points  as  the  Legislature  may  designate." 

Now,  on  this  question  of  crossing,  under  the  Constitution 
of  Pennsylvania,  under  well-established  principles,  there  are 
two  conditions  in  that  contract  which  cannot  be  violated. 
First,  the  Legislature  of  Pennsylvania  cannot  authorize  a 
parallel  road  to  connect  with  the  Pennsylvania  Railroad. 
There  is  your  bond,  and  you  have  given  it,  that  you  will  not. 
Second,  no  other  connection  is  permitted  to  be  made  except 
those  which  shall  be  designated  by  the  Legislature. 

So  that  the  railroad  company  has  the  faith  of  the  Common- 
wealth pledged  against  connection  by  parallel  roads  and 
against  any  other  connection  than  that  which  the  legislature 
in  its  sense  of  justice  shall  think  it  right  to  grant. 

Now,  the  point  I  make  is  this.  Under  your  bill,  suppose  a 
railroad  company  chartered  under  existing  laws  comes  to  the 
line  of  the  Pennsylvania  Railroad  Company  and  says  :  "  We 
demand  a  connection  at  this  point."  If  it  is  a  parallel  road 
of  course  it  cannot  be  done  even  by  the  Legislature.  But  I  am 
taking  another  case.  I  am  an  officer  of  the  Pennsylvania 
Railroad  Company ;  Mr.  Roberts  is  an  officer  of  the  Pennsyl- 


S' 


if 


lO 

vania  Railroad  Company,  and  he  says  to  me :  "  Mr.  Scott,  has 
this  road  chartered  under  the  law  of  1868,  the  right  to  connect 
with  our  road  at  a  point  that  they  see  proper  to  designate." 
I  say  to  him  in  candor,  "  In  my  opinion,  no  ;  if  that  road 
wishes  to  connect  with  your  road  they  must  procure  the  sanc- 
tion of  the  Legislature  of  Pennsylvania  before  they  can  do  it." 
He  so  reports  to  his  board,  and  the  board  decides  that  the 
other  officers  of  the  company  be  directed  to  resist  the  cross- 
ing. Under  your  bill,  notwithstanding  the  faith  of  the  Com- 
monwealth pledged  as  I  have  shown  you,  it  is  entirely  possi- 
ble for  every  one  of  us  to  go  to  jail.  For  under  your  bill  the 
failure  to  permit  the  crossing  which  the  Constitution  says 
shall  be  made  is  an  indictable  offense  punishable  with  fine  and 
imprisonment,  and  the  only  tribunal  that  determines  whether 
the  offense  has  been  committed  or  not,  is  the  jury.  There  is 
no  definition  of  the  offense  at  all.  It  may,  too,  be  a  crossing 
at  grade,  which  the  act  of  1871  prohibits  if  any  other  is  rea- 
sonably practicable.  Is  not  your  bill  too  broad  ?  Are  you 
willing  to  re-enact  the  Sermon  on  the  Mount  or  the  Declara- 
tion of  Independence  because  they  contain  good  general  prin- 
ciples, and  make  criminal  the  failure  of  men  to  apply  them  ? 
It  is  a  departure  from  the  principles  of  Anglo-Saxon  liberty  to 
make  a  man  answer  for  an  offense  that  is  not  so  set  out  on 
the  record  that  if  ever  indicted  for  it  again  he  can  plead  that 
he  has  been  tried  once  for  it  already.  But  if  tried  under 
this  bill,  you  can  come  in  and  indict  hi  m  almost  for  not 
building  a  railroad. 

I  have  selected  that  one  provision  as  an  illustration.  And 
from  that  illustration  how  many  indictments  are  you  going  to 
have  in  the  courts  of  the  Commonwealth  under  this  bill  ?  A 
railroad  is  a  public  highway. 

"  Any  association  or  corporation  organized  for  the  purpose  shall  have 
the  right  to  construct  and  operate  a  railroad  between  any  points." 

Here  is  another  general  principle,  and  to  deny  it  and  dis- 
pute it,  to  fail  to  observe  it,  is  an  indictable  offense.  All  these 
are  made  indictable  offenses.  No  criminal  pleader  could  draw 
indictments  under  such  enactment.      I  trust  that  no  law  of 


/' 


II 

this  kind  will  ever  go  on  the  statute  book  of  this  Common- 
wealth as  a  penal  statute. 

So  I  might  read  all  the  provisions  of  the  three  sections  ex- 
cept those  which  I  have  stated  as  imposing  duties. 

Gentlemen  of  the  Committee,  I  need  not  take  up  your  time 
in  going  over  this  view  of  the  question.  You  propose  pro- 
hibiting legislation  for  the  purpose  of  enforcing  these  three 
articles.  I  have  shown  you  that,  with  the  exception  of  dis- 
crimination, all  the  others  are  simply  declarations  of  general 
principles.  Discrimination  is  already  prohibited  by  statute 
and  defined.  Two  years  ago  I  had  the  honor  of  appearing 
before  a  committee  of  this  body  upon  this  same  question,  and 
after  hearing  all  that  was  said  on  the  subject  you  passed  the 
act  of  1883,  still  on  the  statute  books,  and  it  defines  and  pun- 
ishes with  a  penalty  every  feature  of  discrimination  that  is  in 
this  bill.  Although  it  did  not  make  the  failure  to  observe  it 
a  criminal  offense,  but  imposed  only  a  penalty,  it  defined  what 
is  undue  and  unreasonable  discrimination. 

Senator  Biddis  : — Has  there  ever  been  in  any  of  the  courts 
a  case  under  the  law  of  1883  that  you  know  of? 

Mr.  Scott  : — You  have  anticipated  the  very  remark  I  was 
about  to  make,  that  although  that  law  stands  on  the  statute 
book  and  has  stood  there  for  two  years  defining  the  offense  of 
undue  and  unreasonable  discrimination,  and  giving  to  the 
party  injured  three  times  the  damages  he  had  suffered,  not 
simply  the  overcharge,  but  three  times  the  damages  he  has 
suffered,  so  far  as  the  road  under  my  immediate  supervision  in 
its  legal  department  is  concerned, — and  that  embraces  all  the 
roads  of  the  Pennsylvania  system  East  of  Pittsburgh  and  Erie, 
there  has  not  been  a  single  suit  instituted  in  a  court  of  this 
Commonwealth  to  recover  that  penalty ;  not  one.  The  offi- 
cers of  other  companies  can  answer  for  them. 

Senator  Lee  : — Have  they  not  settled  cases  where  demand 
was  made  for  discriminations  made  ? 

Mr.  Scott  : — We  have  not  settled  any  that  I  am  aware  of. 

Senator  Lee  : — Has  the  company  ? 

Mr.  Scott  : — If  the  general  freight  agent  has  settled  such, 
I  do  not  know  ;  but  if  they  have — 


n 


;  I 


12 

Senator  Lee  : — {Sotto  voce)  They  have,  I  know. 

Mr.  Scott  : — If  they  have,  there  is  no  better  illustration  of 
the  fact  that  the  people  of  this  Commonwealth  do  not  need 
criminal  enactments  to  get  justice  if  they  can  get  it  by  going 
to  the  office  of  the  general  freight  agent.  That  is  a  much 
shorter  course  than  lawsuit — the  course  implied  in  your 
question — and  you  ought  not  to  put  it  unless  you  know  it 
to  be  true ;  and  I  say  the  implication  in  your  question  is  the 
best  reason  in  the  world  why  this  law  should  not  pass.  If 
they  have  made  discriminations  and  they  return  the  money 
( I  do  not  agree  that  it  is  so),  that  is  better  to  any  man  than  to 
indict  the  agent  or  to  bring  suit  and  get  the  money.  I  do  not 
know  that  it  is  so  ;  but  if  it  be  so,  it  answers  the  only  argument 
you  can  make  for  the  passage  of  your  bill. 

Let  me  pass  on  now  to  the  fourth  section.  This  is  intended 
as  a  means  of  preventing  discrimination  by  making  public 
rates  and  charges.  The  practical  question  I  do  not  propose 
to  discuss  at  any  length,  although  there  are  some  on  the  face 
of  this  so  clear  that  it  seems  to  me  that  the  authors  of  the  bill 
have  mistaken  what  they  intended  to  say,  or  have  said  a  good 
deal  more  than  they  are  willing  to  avow  now. 

What  do  you  ask  us  to  do  ?  To  put  up  at  every  station  a 
schedule  covering  all  classes  of  merchandise,  and  all  the 
places  to  which  they  are  to  be  forwarded.  The  learned  author 
of  the  bill,  the  learned  member  of  the  committee  who  put  his 
interrogatories  to  Mr.  Roberts,  rather  intimated  that  that  was 
intended  only  to  cover  the  stations  on  the  line  of  the  road 
itself  If  so,  pray  why  did  you  follow  it  with  language  which 
requires  us  to  give  the  rates  to  every  place,  not  only  in  this 
State,  but  in  the  other  States  into  which  we  go,  and  from 
which  freight  comes,  and  into  foreign  countries.  And  we  are 
to  put  it  up  in  two  places,  so  that  it  can  be  read  for  public 
information;  and  the  rates  are  to  be  agreed  upon,  not  by  the 
general  freight  agent,  but  by  the  company ;  and  when  they 
are  put  up  we  cannot  change  them  until  there  has  been  two 
days'  notice  ;  and  when  we  do  change  them  we  cannot  take 
those  down  until  we  have  reprinted  the  substitute  for  the 
whole  schedule  that  we  had  previously  put  up.     We  cannot 


>  i  t 


\% 


13 

resort  to  the  "  sticker "  principle,  as  people  do  at  elections, 
of  putting  on  a  little  piece  of  paper  to  correct  an  error  or 
change  a  name  or  anything  of  that  sort ;  but  every  time  a 
change  is  made  there  must  be  a  substitute  for  those  previously 
put  up,  and  that  cannot  go  into  effect  until  two  days  after  it  is 
put  up.  I  submit  that  under  the  language  of  that  section, 
where  you  require  the  rates  to  be  fixed,  not  by  the  freight 
agent,  but  by  the  company  (requiring  corporate  action),  it  would 
involve  corporate  action  again  to  change  them  and  order  the 
new  schedule  to  be  put  up.  Meantime  where  is  the  poor 
agent  if  a  mistake  has  been  made  ?  If  he  charges  an  unreason- 
able amount — more  or  less — if  he  even  wants  to  correct  a 
mistake  he  is  liable  to  indictment  at  the  suit  of  any  malicious 
person  shipping  over  the  road.  In  my  judgment  that  section 
is  impracticable,  utterly  impracticable.  And  Mr.  Roberts 
has  stated  very  fully  the  process  through  which  you  require 
a  railroad  company  of  this  Commonwealth  to  go  in  making 
amendments,  always  giving  sufficient  notice  for  every  other 
railroad  company  lying  between  the  line  of  Pennsylvania  and 
Omaha  to  change  its  rates  before  our  changed  rates  can  go 

into  effect. 

There  is  no  use  in  ignoring  the  course  of  business  in  the 
country.  It  is  stronger  generally  than  an  unreasonable  law. 
Business  will  find  its  way  through  the  channels  that  nature 
intended,  unless  there  be  obstacles  put  there  so  strong 
that  they  cannot  be  overcome.  If  you  do  in  Pennsylvania 
pass  such  legislation  as  prevents  its  corporations  from  getting 
their  share  of  through  freight  from  the  Mississippi  to  the  At- 
lantic coast,  there  are  States  west  of  you  and  east  of  you, 
north  and  south  of  you,  sharp  enough  not  to  trammel  their 
commerce  with  any  such  legislation.  You  can  if  you  will  enact 
such  legislation  as  will  permit  them  to  take  the  trade  to  Buffalo 
and  New  York  and  Baltimore  and  let  the  grass  grow  on  the 
railways  of  Pennsylvania.  And  that  is  just  the  effect  that  the 
fourth  section  will  have.  I  will  not  illustrate  it  at  any  greater 
length  than  Mr.  Roberts  has  already  done. 

The  fifth  section  provides  that  making  an  overcharge  is  an 
offense.     It  is   making  the  overcharge,  not  receiving    it,  and 


•:  'i  t 


'■i\ 


i 


!1 


:*! 


14 

three  times  the  entire  charge  is  the  penalty ;  and  for  any  other 
violations  treble  the  amount  of  injury  suffered.  For  myself,  I 
do  not  see  the  necessity  of  that  distinction  You  have  put  up 
your  schedules,  and  you  have  fixed  your  rates,  and  although 
you  provide  that  the  agent  shall  not  take  either  more  or  less 
than  that  fixed,  you  provide  that  if  the  railroad  overcharge, 
the  man  overcharged  can  recover  three  times  the  entire  charge. 
That  is  one  specific  point.  Then,  for  any  offense  other 
than  making  the  overcharge  you  provide  that  he  shall  re- 
cover three  times  the  damages  suffered.  If  that  damage  were 
twenty  times  the  overcharge,  you  permit  one  man  to  recover 
that  and  the  other  three  times,  for  the  offense  against  which 
the  main  features  of  your  bill  are  aimed.  As  I  have  already 
said,  I  do  not  see  the  reason  for  that  distinction. 

Having  gone  over  these  sections  down  to  the  criminal  one, 
I  want  to  call  your  attention  to  the  fact  that  with  the  excep- 
tion of  making  the  general  sections  of  these  three  articles  of 
the  Constitution  indictable  and  giving  treble  overcharge  to  the 
party  who  has  paid  it,  you  have  not  enacted  a  single  thing  that 
is  not  in  the  act  of  1883.  I  have  something  yet  to  say  about 
the  mode  of  trial. 

Senator  Lee  : — What  do  you  say  about  the  latter  clause 
of  the  second  section  not  being  in  the  act  of  1883  ? 

Mr.  Scott  : — What  is  that  ? 

Senator  Lee  : — (Reading)  "  Persons  and  property  trans- 
ported over  any  railroad  shall  be  delivered  at  any  station  at 
charges  not  exceeding  the  charges  for  transportation  of  per- 
sons and  property  of  the  same  class  in  the  same  direction  to 
any  more  distant  station." 

Mr.  Scott  : — I  do  not  find  that  that  is  in  the  act  of  1883 
and  in  looking  at  my  notes  I  find  I  have  that  noted  in  the 
exceptions. 

Senator  Lee  : — You  did  not  make  that  exception,  how- 
ever, just  now. 

Mr.  Scott  : —  Very  well,  excuse  me  for  the  omission.  I 
have  it  in  my  notes,  sir,  that  with  the  exception  of  making  all 
these  criminal  offenses  and  requiring  these  cars  to  be  trans- 
ported over   the    road,  and  with   the   exception    of  making 


«      I 


i\ 


\ 


>. 


•       15 

treble  the  overcharge,  there  is  nothing  in  this  act  that  is  not 
provided  in  the  act  of  1883— not  one  thing.  On  that  subject 
of  receiving  and  transporting  cars,  for  the  corporation  which  I 
represent,  I  have  specially  the  right  to  say  that  that  provision 
in  the  Constitution  ought  not  to  be  re-enacted  into  statute 
law.  Why,  you  cannot  make  connection  unless  it  is  author- 
ized by  the  Legislature  of  Pennsylvania,  and  I  trust  that  I 
need  not  come  to  any  other  tribunal  than  the  committee 
which  is  before  me  to  have  it  refused.  If  a  corporation  run- 
ning from  the  Southern  line  of  Pennsylvania  were  to  reach 
our  road  one  mile  West  of  Gallitzin  Tunnel,  and  demand  con- 
nection, and  the  transportation  of  cars,  tonnage,  and  passengers 
to  one  mile  East  of  Gallitzin  Tunnel,  where  they  connect  with 
another  railroad  that  is  to  go  to  the  line  of  the  State  of  New 
York,  you  would  scout  it  out  of  the  Legislature  in  less  time 
than  it  would  take  to  give  it  a  first  reading.  Under  this  section 
as  it  stands  a  railroad  of  the  character  I  have  indicated  might 
claim  such  connection.  It  is  well  that  we  have  that  clause  in 
the  charter  of  the  Pennsylvania  Railroad  Company.  I  pass, 
then,  to  the  sixth  section. 

I  have  already  commented  to  some  extent  upon  the  char- 
acter of  that  section.  Before  passing  from  it,  however,  I  wish 
to  call  your  attention  to  the  case  of  the  Louisville  and  Nash- 
ville Railroad  Company  against  the  Railroad  Commissioners 
of  Tennessee,  reported  in  the  sixteenth  volume  of  American 
and  English  Railroad  Cases.  I  have  the  book  here,  and  I 
would  be  glad  to  read  from  it,  to  show  you  that  the  law  of 
Tennessee,  which  did  not  make  the  offenses  indictable,  but 
did  impose  upon  them  penalties  such  as  you  have  here  in 
the  nature  of  damages  for  offenses  that  were  even  more 
specific  than  you  have  described  in  your  bill,  was  declared 
by  Judge  Baxter,  of  the  United  States  Circuit  Court,  and 
Judge  Hammond,  sitting  with  him,  to  be  utterly  unenforce- 
able. They  scouted  the  idea  that  under  legislation  which 
prohibited  unfair  and  unreasonable  rates,  any  company  should 
be  amerced  in  penalties.  I  should  be  glad  to  read  if  I 
had  time.  But  I  find  I  am  using  more  of  your  time  than  I 
supposed. 


V 


i6 


H 


il 


! 


:;! 
■1 


Senator  Gobin  : — In  what  page  and  volume  did  you  say  that 
decision  was  to  be  found  ? 

Mr.  Scott:— Page  i6,  Vol.  XVI.     May  I  read  very  briefly 

from  this  decision  ? 

"  We  think  the  property  of  a  citizen— and  a  railroad  corporation  is  in 
legal  contemplation  a  citizen— cannot  be  thus  imperiled  by  such  vague, 
uncertain,  and  indefinite  enactments.  The  corparations  and  persons 
against  whom  this  act  is  directed,  can  do  nothing  under  it  with  reason- 
able safety.  They  may  take  counsel  of  the  commissioners,  act  upon  their 
advice,  and  honestly  endeavor  to  conform  to  the  statute.  But  if  a  jury 
before  whom  they  may  be  subsequently  arraigned,  shall,  in  their  judg- 
ment and  upon  such  arbitrary  basis  as  they  are  at  liberty  to  adopt, 
conclude  that  the  commissioners  misadvised,  or  that  the  managers  of  the 
accused  railroad  corporation  made  a  mistake  in  regulating  their  charges 
upon  a  five  per  cent.,  instead  of  a  four  per  cent,  basis,  the  honesty  and 
good  faith  of  the  accused  will  go  for  nothing,  and  penalty  upon  penalty 
may  be  added  until  the  defendant's  property  shall  be  gradually  transferred 
to  the  public.  This  cannot  be  permitted.  Penalties  cannot  thus  be  in- 
flicted at  the  discretion  of  a  jury.  Before  the  property  of  a  citizen,  nat- 
ural or  corporate,  can  thus  be  confiscated,  the  crime  for  which  the  penal- 
ty is  inflicted  must  be  defined  by  the  law-making  power.  The  legislature 
cannot  delegate  this  power  to  a  jury.  If  it  can  declare  it  a  criminal  act 
for  the  railroad  corporation  to  take  more  than  a  '  fair  and  just  return'  on 
its  investments,  it  must,  in  order  to  the  validity  of  the  law,  define  with 
reasonable  certainty  what  would  constitute  such  'fair  and  just  return.' 
The  act  under  review  does  not  do  that,  but  leaves  it  to  the  jury  to  supply 
the  omission.  No  railroad  can  possibly  anticipate  what  view  a  jury  can 
take  of  the  matter,  and  hence  cannot  know  in  advance  of  a  verdict 
whether  its  charges  are  lawful  or  unlawful.  One  jury  may  convict  for  a 
charge  made  on  the  basis  of  four  per  cent.,  while  another  might  acquit 
an  accused  who  had  demanded  and  received  at  the  rate  of  six  per  cent., 
rendering  the  statute,  in  its  practical  working,  as  unequal  and  unjust  in 
its  operation  as  it  is  indefinite  in  its  terms.  No  citizen,  under  the  pro- 
tection of  this  court,  can  be  constitutionally  subjected  to  penalties,  and 
despoiled  of  its  property,  in  a  criminal  or  guasi  criminal  proceeding, 
under  and  by  force  of  such  indefinite  legislation." 

In  this  fourth  ^section  you  have  undertaken  to  say  that 
the  rates  shall  be  put  up  and  collected  in  the  manner  provided 
for  other  services  rendered  in  the  transportation  of  property 
within  this  State  or  coming  from  or  going  to  any  other  State 
or  foreign  country. 

This  is  a  subject  upon  which  I  should  be  glad  to  speak  at 
more  length  than  your  time  will  permit.  I  know  the  language 
of  the  Constitution  is  in  the  first  part  of  the  bill,  but  this  is  your 


L! 


' 


17 

additional  statutory  clause  after  getting  through  with  the  con- 
stitutional provisions  that  you  have  quoted  and  re-enacted. 
You  undertake  to  impose  upon  the  agents  of  this  company 
duties  with  reference  to  freight  going  to  other  States  and  coming 
from  other  States  and  passing  to  foreign  countries.  You  re- 
quire that  the  rates  upon  that  freight  shall  be  published.  You 
impose  penalties  for  not  doing  it,  and  you  impose  penalties 
for  taking  more  or  less  than  is  fixed  upon. 

I  can  hardly  conceive  of  any  law  which  more  directly 
contravenes  the  spirit  of  the  Federal  Constitution  upon  the 
subject  of  interstate  commerce.  Foreign  commerce  and 
interstate  commerce  are.  there  mutually  put  under  the 
exclusive  jurisdiction  of  Congress.  And  all  the  provisions 
that  relate  to  that  subject  show  that  so  far  as  relates  to  inter- 
state and  foreign  commerce  all  the  States  are  to  be  upon  an 
equality — equality  is  to  be  enforced  between  the  States  just  as 
you  are  seeking  to  enforce  equality  between  the  citizens  in 
preventing  discrimination.  Duties  shall  be  uniform— no  reg- 
ulation of  commerce  that  Congress  can  make  can  give  a  port 
in  one  State  a  preference  over  a  port  in  another  State.  All 
this  is  intended  to  put  the  interstate  commerce  of  the  country 
upon  the  same  footing  in  giving  Congress  exclusive  power 
over  it  as  foreign  commerce.  No  vessel  clearing  in  one  State 
shall  be  required  to  clear,  enter,  or  pay  duties  in  another 
State.  What  more  cogent  provision  could  be  introduced  to 
show  the  intention  that  each  State  should  stand  upon  an 
equality  with  reference  to  interstate  commerce  ?  Now,  it  will 
not  do  to  say  that  the  State  may  legislate  as  long  as  Congress 
has  not  legislated.  I  do  not  care  to  discuss  that  at  any  length, 
because  the  case  I  have  quoted  disposes  of  it  upon  another 

feature  of  the  bill. 

But  let  me  ask  your  attention  to  the  fact  that  the  whole  ar- 
gument about  the  States  being  left  free  to  regulate  interstate 
commerce  until  Congress  has  taken  up  the  subject,  disappears 
in  the  light  of  Congressional  legislation.  They  have  taken 
charge  of  the  subject.  Go  to  the  Revised  Statutes,  and  you 
will  find  the  act  of  June,  1866,  which  permits  the  corporations 
owning  the  railroads  in  the  several  States  of  the  Union  to 


* 


i8 

unite  together  for  the  purpose  of  making  through  channels 
for  transportation,  to  run  them  by  steam,  and  collect  rates  of 
freight  and  fares  upon  them,  the  act  regulating  the  trans- 
portation of  live  stock  from  State  to  State,  and  the  several  acts 
relating  to  transportation  of  merchandise  in  bond.  How  much 
more  comprehensively  could  they  have  taken  charge  of  it  ? 
The  very  fact  that  they  did  not  attempt  to  fix  rates,  leaves  the 
companies  free  to  fix  those  rates,  unless  Congress  shall  take 
one  step  farther  and  do  it,  which,  as  you  are  well  aware,  on 
several  occasions,  they  have  recently  essayed  to  do,  and  which 
you  asked  them  by  your  resolution  of  1878  to  do. 

Do  you  say  that  this  bill  does  not  regulate  interstate 
commerce  ?  How  much  more  effectually  can  you  regu- 
late it,  than  to  provide  that  the  rates  on  interstate  commerce 
shall  be  fixed  by  the  companies  ;  that  they  shall  collect  only 
those  rates,  and  shall  be  indictable  and  pay  penalties  if  they 
collect  more  ? 

Mr.  Roberts  has  told  you  how  this  will  affect  the  interstate 
commerce  of  Pennsylvania.  If  the  proportionate  rate  which 
a  cargo  from  Chicago  to  New  York  will  cost  for  trans- 
portation through  Pennsylvania  is  less  than  the  local  rate 
upon  trade,  do  not  the  very  terms  of  your  bill  make  every 
officer  of  the  road  who  collects  that  rate  indictable?  It  is 
less  than  the  schedule  rate  if  they  take  their  proportion  at  all; 
and,  if  it  is  more,  it  is  just  as  bad;  and,  in  either  case,  as 
Mr.  Roberts  has  pointed  out  to  you,  it  is  simply  a  means  of 
giving  to  the  port  of  Baltimore  and  to. the  port  of  New  York 
by  a  regulation  of  fares  on  the  roads  of  Pennsylvania  a  pref- 
erence which  the  Constitution  says  Congress  is  not  permitted 
to  do. 

The  same  book  to  which  I  have  referred,  on  pages  23,  25, 
32,  33,  34,  and  35 — they  are  entirely  too  many  to  read — take 
up  the  features  of  that  Tennessee  law  which  placed  the  power 
of  fixing  rates  in  a  commission  appointed  by  the  Legislature 
of  that  State,  and  which  was  so  worded  that  it  gave  them 
power,  as  yours  proposes  to  do,  over  commerce  coming  into 
and  passing  out  of  the  State. 

In  a  very  able   opinion  Judge    Hammond,    reviewing   all 


<^\ 


19 

the  cases,  including  the  Granger  cases,  shows  conclusively 
that  such  an  attempt  is  a  regulation  of  interstate  commerce, 
and  one  which,  under  the  terms  of  the  Constitution  of  the 
United  States,  is  unconstitutional  and  void ;  and  in  view  of  the 
two  principles  enunciated  in  that  case — the  one  opinion  on  the 
criminal  feature  of  the  law  being  delivered  by  the  circuit 
judge,  and  the  other  by  the  district  judge — they  restrained  the 
Railroad  Commissioners  of  Tennessee  from  putting  that  act 
in  force,  and  said  to  them:  "You  shall  not  collect  penalties 
under  it ;  you  shall  not  regulate  these  rates  upon  interstate 
commerce." 

Gentlemen,  these  are  features  of  this  bill  which  I  have 
■deemed  it  necessary  to  call  your  attention  to. 

I  pass  now  to  one  which  I  have  not  heretofore  considered. 
And  in  doing  that  I  wish  for  a  moment  to  say  that  I  am  not 
talking  as  the  attorney  of  the  Pennsylvania  Railroad.  I  am 
here  as  a  citizen  of  this  Commonwealth  with  Scotch-Irish 
blood  in  my  veins,  and  I  want  to  enter  my  protest  against 
such  a  blot  as  the  seventh  section  of  this  bill  being  put 
upon  the  reputation  of  the  Commonwealth. 

Railroad  officers  are  not  sinners  above  all  men  ;  and  if  they 
are  sinners,  they  are  entitled  to  the  common  protection  of  all 
men  who  are  charged  as  criminals.  I  have  read  no  attempt 
at  legislation  that  contravenes  so  many  of  the  well-estab- 
lished principles  of  Anglo-Saxon  liberty  as  the  seventh  sec- 
tion of  this  bill. 

What  does  it  provide  ?  I  will  not  say  a  word  about  the 
civil  penalties.  You  may  do  as  you  please  about  them.  But 
when  you  undertake  to  run  and  regulate  the  railroads  of  this 
Commonwealth  through  the  Court  of  Quarter  Sessions  I  am 
here  to  protect  the  rights  of  large  bodies  of  citizens  who  are 
engaged  in  the  railroad  business.  You  first  provide  that  a 
failure  to  do  anything  required  is  an  indictable  offense;  any 
doing  of  a  thing  prohibited  is  an  indictable  offense,  pun- 
ishable by  a  fine  of  ;^2500  and  imprisonment,  and  then  the 
accused  party  is  to  be  tried,  how  ?  Whenever  any  man  who 
feels  aggrieved  thinks  proper  to  lodge  information  in  any 
county  of  this  Commonwealth  through  which  the  road  runs. 


I 


( 


20 

or  in  which  it  has  an  office  or  branch,  he  can  do  so,  and  there 
the  indictment  is  to  be  tried. 

Now,  Mr.  Chairman  and  Gentlemen,  we,  at  the  end  of  a 
long  war,  in  which  this  nation  was  baptized  in  blood,  put 
into  the  Constitution  of  the  United  States  a  provision  that  no 
State  shall  pass  any  law  which  shall  deny  to  its  citizens  the 
equal protectio7i  of  the  laws.  The  Constitution  of  Pennsylva- 
nia provides  that  trial  by  jury  shall  remain  as  heretofore,  and 
that  every  man  charged  with  a  criminal  ofifense  shall  have  a 
right  to  a  speedy  trial  by  a  jury  of  the  vicinage.  Those  two 
provisions  which  now  stand  in  the  declaration  of  rights,  as 
part  of  the' general,  great  and  essential  principles  of  liberty  and 
free  government,  stood  in  the  ninth  article  of  the  Constitution 
of  1790  just  in  the  language  in  which  they  stand  to-day  ;  they 
stood  in  the  Constitution  of  1838  just  in  the  language  in 
which  they  stand  to-day ;  and  when  the  Legislature  of  this 
Commonwealth  passed  the  act  in  1872  for  the  convention  to 
form  a  new  Constitution,  it  wrote  into  that  act — and  you  will 
find  it  if  you  look  at  it — that  they  would  not  commit  to  any 
constitutional  convention  the  right  to  change  those  declara- 
tions contained  in  the  sixth  and  ninth  sections  of  the  ninth 
article,  which  protected  the  liberty  of  citizens.  They  withdrew 
that  whole  article  from  the  Constitutional  Convention  of  1874, 
and  declared  it  should  remain  "  inviolate  forever."  Further,, 
it  is  declared,  in  that  Constitution  :  The  Legislature  shall  not 
change  the  venue  **  in  civil  or  criminal  cases."  To  make  it 
sure,  the  courts  of  the  Commonwealth  only  have  that  power. 

In  the  light  of  these  principles,  this  bill  violates  the  four- 
teenth amendment  of  the  Constitution  of  the  United  States  by 
singling  out  one  class  of  citizens — railroad  and  canal  officers — 
and  making  them  indictable  in  any  county  of  the  Common- 
wealth into  which  the  road  runs,  whereas  every  other  citizen 
is  entitled  to  a  trial  by  jury  in  the  county  in  which  the  offense 
is  committed.  It  violates  the  spirit  of  the  other  provisions  by 
changing  the  venue  in  every  one  of  those  cases,  usurping 
the  power  of  the  court. 

If  there  be  reasons  why  a  civil  or  criminal  case  should  not 
be  tried  in  a  county  in  which  it  is  brought,  let  it  go  to  the 


21 


/ 


courts  and  let  them  dispose  of  it.  But  here,  under  this  legis- 
lation, if  an  agent  at  Harrisburg  makes  an  overcharge  on 
freight  going  to  Lancaster  or  Philadelphia,  you  take  him  to 
Erie  or  Clearfield  or  Pittsburgh  and  make  the  information 
against  him  there,  and  take  him  into  court  and  try  and  con- 
vict him  there. 

Gentlemen  of  the  Committee,  I  have  said  thus  much  ;  I  could 
hardly  say  less  on  the  subject.     I   trust  that  whatever  legis- 
lation there  is  to  be  with  reference  to  common  carriers,  railroads,, 
canals,  or  any  other  carriers  of  the  Commonwealth,  their  officers 
will  never  be  singled  out  as  Ishmaelites,  criminals  not  entitled 
to  the  common  rights  of  trial  by  a  jury  of  their  neighbors,  if  you 
do  think  it  wise  to  make  these  offenses  indictable.    It  is  not  wise. 
Overviolent  laws  always  defeat  themselves.     A  reasonable  law 
regulating  railroad  companies,  any   reasonable    law  that  will 
meet  with  the  approval  of  the  community,   will    be   cheer- 
fully acquiesced  in  by  the    railroad   companies.     They    are 
not  law-breakers ;  they  are  not  heartless  ;  they  do  not  wish 
to  bring  down  the  odium  of  their  fellow-men  upon  themselves, 
but  they  do  protest  against  being  singled  out  as  a  class,  at 
the  sacrifice  of  principles  imbedded  in  the  constitutional  law 
of  both  the  nation  and  the  State.     They  hope  that  a  law 
which  upon  its  face  is  intended  to  prevent  discrimination  will 
not,  in  the  most  odious  form  in  which  it  is  possible  to  make  it,. 
enact  discrimination  against  them. 

Senator  Biddis  : — Do  you  think  that  under  the  terms  of 
the  sixth  and  seventh  sections,  in  case  a  warrant  were  issued 
by  a  magistrate,  this  being  a  misdemeanor,  the  defendant 
could  be  arrested  in  another  county  and  taken  from  that 
county  without  the  backing  of  warrant  required  by  a  magis- 
trate of  the  county,  as  is  now  required  ? 

Mr.  Scott  : — Well,  on  that  subject  I  will  say  that  unless- 
you  could  find  a  justice  of  the  peace  who  would  be  wise 
enough  to  undertake  to  defy  this  act  of  the  Legislature  and 
say  that  it  was  contrary  to  the  provisions  of  the  Constitution,, 
the  constable  who  got  the  warrant  from  the  justice  would 
arrest  and  take  the  man  before  him. 

Senator  Biddis  : — Without  having  it  backed  ? 


MBMi 


22 

Mr.  Scott  : — Without  having  it  backed. 

Senator  Biddis  : — It  has  seemed  so  to  me. 

Mr.  Scott  : — He  might  do  so,  although  the  plain  citizens 
of  this  Commonwealth  who  know  the  oath  that  grand  ju- 
rors take,  know  that  it  requires  them  to  inquire  only  as  to 
offenses  committed  in  the  body  of  the  county.  But  this 
would  require  a  jury  in  Erie  to  inquire  as  to  offenses  com- 
mitted in  Philadelphia,  or  anywhere  else  in  the  State  where 
the  road  ran. 

Senator  Biddis  : — Is  there  any  parallel  case  in  this  Com- 
monwealth in  which  that  could  be  done  ? 

Mr.  Scott  : — I  hope  not.  I  know  that  where  a  man  steals 
a  horse  in  one  county  and  rides  him  into  another,  you  may 
indict  him  in  either.  I  know  that  when  a  child  is  begotten 
in  one  county  and  born  in  another,  you  may  indict  in  either. 
But  if  freight  be  transmitted  from  Harrisburg,  and  go  to  Lan- 
caster county,  under  the  bill,  the  agent  may  be  indicted  in  any 
one  of  the  counties  between  Dauphin  and  Allegheny.  It  is 
totally  subversive  of  the  old  Anglo-Saxon  principles  of  lib- 
erty and  of  the  right  of  trial  by  jury. 

Senator  Biddis  : — Then  you  do  not  think  the  words  "  ap- 
propriate legislation  "  warrant  a  criminal  penalty  at  all  ? 

Mr.  Scott  : — You  mean  that  portion  of  the  Constitution 
which  requires  appropriate  legislation  to  enforce  it? 

Senator  Biddis  : — Yes ;  the  language  is  "  appropriate  leg- 
islation." 

Mr.  Scott  :— Well,  I  do  not  say  that,  if  the  Legislature  in 
its  wisdom  deem  it  wise  to  make  those  things  criminal  offenses 
that  have  been  heretofore  considered  the  subject  of  civil  regu- 
lation between  business  men,  they  have  not  the  power  to  do 
so  ;  but  I  do  say  that  when  they  undertake  to  make  them 
criminal  offenses,  they  ought  not,  in  doing  so,  to  violate  in  the 
act  one  provision  of  the  Federal  and  four  provisions  of  the 
State  Constitution. 


I 


SENATE  FILE,  No.  114,  SESSION  OF  1885. 

AN  ACT 

To  carry  into  effect  the  provisions  of  the  first  third  and  seventh  sections  of  the  seven- 
teenth article  of  the  Constitution  of  this  commonwealth  and  to  provide  penalties  for 
the  violation  thereof 

Section  i  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  Commonwealth  of  Pennsylvania  in  General  Assembly  met  and 
it  is  hereby  enacted  by  the  authority  of  the  same  That  all  railroads 
and  canals  shall  be  public  highways  and  all  railroad  and  canal  com- 
panies shall  be  common  carriers  Any  association  or  corporation  organ- 
ized for  the  purpose  shall  have  the  right  to  construct  and  operate  a 
railroad  between  any  points  within  this  State  and  to  connect  at  the  State 
line  with  railroads  of  other  States  Every  railroad  company  shall  have 
the  right  with  its  road  to  intersect  connect  with  or  cross  any  other  rail- 
road and  shall  receive  and  transport  each  the  others  passengers  ton- 
nage and  cars  loaded  or  empty  without  delay  or  discrimination 

Section  2  All  individuals  associations  and  corporations  shall  have  equal 
right  to  have  persons  and  property  transported  over  railroads  and  canals 
and  no  undue  or  unreasonable  discrimination  shall  be  made  in  charges 
for  or  in  facilities  for  transportation  of  freight  or  passengers  within  this 
State  or  coming  from  or  going  to  any  other  State  Persons  and  prop- 
erty transported  over  any  railroad  shall  be  delivered  at  any  station  at 
charges  not  exceeding  the  charges  for  transportation  of  persons  and 
property  of  the  same  class  in  the  same  direction  to  any  more  distant 
station  but  excursion  and  commutation  tickets  may  be  issued  at  special 

rates 

Section  3  No  discrimination  in  charges  or  facilities  for  transportation 
shall  be  made  between  transportation  companies  and  individuals  or  in 
favor  of  either  by  abatement  drawback  or  otherwise  and  no  railroad  or 
canal  company  or  any  lessee  manager  or  employe  thereof  shall  make 
any  preferences  in  furnishing  cars  or  motive  power 

Section  4  That  each  railroad  company  shall  adopt  and  at  each  depot 
where  freights  are  received  or  delivered  shall  keep  posted  up  for  public 
inspection  in  at  least  two  places  schedules  which  shall  plainly  state 

First  The  different  kinds  and  classes  of  freight  to  be  carried  there- 
from 

Second    The  different  places  to  which  such  freights  shall  be  carried 

Third  The  conditions  under  which  allowances  or  advantages  in  any 
form  may  be  granted  upon  shipments  made  or  services  rendered 

(23) 


i» 


,N 


24 

Fourth  The  charges  by  freight  rates  or  tolls  or  otherwise  for  the 
furnishing  of  cars  or  motive  power  or  for  the  moving  carrying  expedit- 
ing receiving  delivering  forwarding  transferring  loading  unloading 
storing  or  hauling  of  property  or  for  other  services  rendered  in  the 
transportation  of  property  within  this  State  or  coming  from  or  going  to 
any  other  State  or  foreign  country  and  the  bills  for  such  service  shall 
show  what  part  of  the  charges  is  for  moving  or  carrying  and  what  part  is 
for  the  other  facilities  or  services  enumerated  as  aforesaid  Such  sched- 
ules may  be  changed  from  time  to  time  as  hereinafter  provided  but  no  such 
schedules  shall  be  changed  in  any  particular  except  by  the  substitution 
of  another  schedule  containing  specifications  above  required  which  sub- 
stituted schedule  shall  plainly  state  the  time  when  it  shall  go  into  effect 
and  copies  of  which  prepared  as  aforesaid  shall  be  posted  as  above 
provided  at  least  two  days  before  the  same  shall  go  into  effect  and  the 
same  shall  remain  in  force  until  another  schedule  shall  as  aforesaid  be 
substituted  The  said  schedules  shall  avoid  undue  and  unreasonable 
discriminations  and  it  shall  be  unlawful  for  a  railroad  company  to  charge 
or  receive  more  or  less  compensation  for  services  rendered  than  shall  be 
specified  in  said  schedules  Provided  That  nothing  contained  in  this  act 
shall  be  construed  to  require  the  railroad  company  aforesaid  to  post  its 
charges  for  receiving  or  delivering  freight  or  other  services  incidental  to 
terminal  facilities  in  any  other  depot  than  that  to  which  said  charges  may 
apply 

Fifth  It  shall  be  the  duty  of  each  railroad  company  to  file  or  cause 
to  be  filed  with  the  Secretary  of  Internal  Affairs  a  copy  of  each 
schedule  posted  as  required  in  this  section  and  this  shall  be  done 
within  fifteen  days  after  posting  as  aforesaid  and  it  shall  be  the  duty  of 
the  said  Secretary  of  Internal  Affairs  to  file  and  preserve  the  same  as  a 
part  of  the  record  of  his  office 

Section  5  Any  railroad  company  making  any  overcharge  for  services 
rendered  as  enumerated  in  this  act  shall  for  each  overcharge  be  liable 
to  pay  to  the  party  thus  overcharged  a  sum  equal  to  three  times  the 
entire  charge  thus  made  and  for  each  violation  of  any  other  provision  of 
this  act  be  liable  to  the  party  injured  for  damages  treble  the  amount  of 
the  injury  suffered  In  actions  brought  as  aforesaid  damages  sustained 
in  the  period  of  a  year  or  part  of  a  year  may  be  declared  upon  or  com- 
plained of  generally  and  as  one  separate  cause  of  action  and  so  whether 
such  damage  be  sustained  in  one  year  or  different  years  and  such  sepa- 
rate cause  of  action  may  be  joined  in  one  action  But  nothing  contained 
in  this  act  shall  be  construed  to  exempt  any  railroad  company  from  any 
•duty  liability  or  penalty  imposed  by  law 

Section  6  Any  director  or  officer  of  any  corporation  or  company  act- 
ing or  engaged  in  any  of  these  matters  and  things  enumerated  in  this  act 
or  any  receiver  or  trustee  lessee  or  person  acting  or  engaged  as  afore- 
said or  any  agent  or  employe  of  any  such  corporation  or  company 
receiver  trustee  lessee  or  person  aforesaid  or  of  one  of  them  alone 
•or  with  any  other  corporation  company  person  or  party  aforesaid  who 


^v 


t 


t' 


25 

shall  willfully  do  or  cause  or  willingly  suffer  to  permit  to  be  done  any 
act  matter  or  thing  in  this  act  prohibited  forbidden  or  declared  unlaw- 
ful or  who  shall  aid  or  abet  therein  or  who  shall  willfully  omit  or  fail  to 
■do  any  act  matter  or  thing  in  this  act  required  to  be  done  or  cause  or 
willingly  suffer  or  permit  any  act  matter  or  thing  required  by  this  act 
to  be  done  not  to  be  so  done  or  shall  aid  or  abet  any  such  omission  or 
failure  or  shall  be  guilty  of  any  violation  of  this  act  or  aid  or  abet 
therein  shall  be  guilty  of  a  misdemeanor  and  upon  conviction  thereof 
shall  be  fined  not  more  than  two  thousand  dollars  and  be  liable  to  an 
imprisonment  not  exceeding  six  months  for  each  and  every  offense 

Section  7  Any  of  the  actions  for  damages  and  any  of  the  indictments 
authorized  for  misdemeanor  by  this  statute  may  be  commenced  and  prose- 
cuted to  judgment  and  conviction  in  any  county  in  this  State  in  which  the 
railroad  or  canal  company  that  is  sued  or  the  official  director  or  em- 
ploye whereof  is  indicted  may  exist  or  be  or  hath  a  branch  railroad  a 
branch  canal  or  an  office  and  process  both  mesne  and  final  may  issue  from 
the  proper  courts  of  such  county  to  any  other  county  or  city  of  this  State 
and  have  like  force  as  if  within  the  county  in  which  such  suits  are 
brought  or  indictments  be  pending  In  the  trial  of  such  suits  for  dam- 
ages or  indictments  for  misdemeanors  the  jury  shall  in  all  cases  under 
the  instructions  of  the  court  determine  whether  the  damages  sued  for 
have  been  sustained  or  the  offense  for  which  the  indictment  is  being  tried 
hath  been  committed 

Section  8  That  nothing  in  this  act  shall  be  construed  to  prevent  property 
of  or  for  the  United  States  or  this  Commonwealth  or  for  charitable  pur- 
poses or  for  exhibitions  or  public  fairs  from  being  carried  or  transported 
at  lower  rates  than  for  the  general  public 

Section  9  All  acts  or  parts  of  acts  inconsistent  herewith  are  hereby  re- 
pealed 

2— Sen  No  114 


COLUMBIA  UNIVERSITY  LIBRARIES 

This  book  is  due  on  the  date  indicated  below,  or  at  the 
expiraUon  of  a  definite  period  after  the  date  of  borrowing,  as 
provided  by  the  library  rules  or  by  special  arrangement  with 
the  Librarian  in  charge. 


DATE  BORROWED 


DATE  DUE 


DATE  BORROWED 


DATE  DUE 


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GAYLAMOUNT 

PAAAPHLET  BINDER 

Monufoctuiwd  by 

GAYLORO  BROS.  Inc. 

SyrocuM,  N.Y. 

Stockton,  Colli. 


COLUMBIA  UNIVERS  TY  LIBRARIES 


0041407962 


D530.7 


So84 


D530»7 


Scott,  John 


Sc84 


Remarks  of  Mr.  John  Scott, general 
solicitor  Pennsylvania  RR.Co, 


\  ■  v;. 


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END  OF 
TITLE 


